Posted
by
Soulskillon Tuesday July 05, 2011 @12:26AM
from the reply-hazy-ask-again dept.

Fudge Factor 3000 writes "Earlier this year both Google and Amazon introduced cloud music storage where users could upload their music and listen to it wherever they had an internet connection. The music industry, however, was up in arms because they believed that Google and Amazon had to pay additional licensing fees for their music storage services. Tim B. Lee at Ars has written an excellent summary of the legal issues surrounding these services. His ultimate conclusion is that Google and Amazon would probably withstand any legal assaults, but it still remains a tough call."

They rejected every deal these services had to offer, not realizing the obvious financial advantage of having an agreement before launch. They walked, and now they have to play legal catch-up in order to ultimately get probably less than they would have gotten if they had just agreed to the worst deal.

Sigh. Someone on the negotiating team should have known that these companies feel that they could absorb whatever the costs of being sued would be and still walk away profitable. But they didn't. So they have the business sense of gnats.

Frankly, the real surprising thing is that this "industry" that is, in fact, dwarfed by the net profits of each of more than a couple large corporations, gets such a disproportionate amount of press and political clout.

They don't even have to do that. A better approach would be for them to each invest, say, $100m (less than Google spent on buying a video CODEC), on endowing a fund to promote permissively licensed recordings. With a couple of billion invested, the fund could pay a lot of actors, writers, and musicians to record their work and release them under permissive licenses. The model would be that they'd get a grant initially, but then fans would donate to fund the later works (e.g. if you liked season 1, pay $1

I wonder why Google, Amazon and Apple don't each buy out one of the major labels outright. It can't be an antitrust issue if each get one. Problem solved.

I think they should start their own. It seems to me like the only things the music industry provides, that the artist can't do alone, are marketing and distribution. Now that downloading music is as easy and common as buying it in a store, distibution is hardly an issue for Google, Apple, or Amazon. And they can afford promotion. All they have to do is the same thing the old-school labels do: find some pretty teens and turn them into pop sensations while occasionally stumbling upon a truly talented artist w

The whole entertainment industry is 9billion per year. Google brings in more in pure profits per year or income for a single quarter. And Apple could just buy most of the entertainment industry with profits from a single quarter...

They rejected every deal these services had to offer, not realizing the obvious financial advantage of having an agreement before launch.

"Rejected"? Neither Google nor Amazon sought permission. Only Apple did. And thanks to Google's and Amazon's hubris, Apple was able to negotiate a pretty sweet deal. So the real question is whether Google's and Amazon's risk will pay off. I really hope it does. It would be a great precedent for consumer's rights with what they can do with their own music, but realistically, American law doesn't exactly leave one with optimism here.

Sigh. Someone on the negotiating team should have known that these companies feel that they could absorb whatever the costs of being sued would be and still walk away profitable. But they didn't. So they have the business sense of gnats.

No, what will happen, if Google or Amazon are sued and they lose, is they hav

So basically the RIAA is trying to claim that if you legally own an MP3 and legally join a service that lets you store said MP3 on a server, you are not legally allowed to play it directly from the server and must download it to your car / computer / phone / mp3 player first? Sorry, but I doubt that'll hold up in court (though with the morons we have in the "justice" system, you never know).

So basically the RIAA is trying to claim that if you legally own an MP3 and legally join a service that lets you store said MP3 on a server

We need to stop right there. The RIAA, if they pursue this, will make the point that that the service itself isn't legal.

It's not even clear that they, or any of the major players involved, have any plans to enter into such a lawsuit, but it's pretty much exactly what happened to MP3.com. Amazon and Google have a fairly key difference in how they work compared to how MP3.com worked, but the weakness is the same.

you are not legally allowed to play it directly from the server and must download it to your car / computer / phone / mp3 player first?

No, that's not what I'm saying at all. I'm saying that the copying (whether streaming or fully ca

MP3.com's service simply scanned the CDs you owned and via checksum determined what albums they were. In theory you could have borrowed CDs you didn't own and used the service. Of course what if one uploads non-RIAA music to this server, or works that are in the public domain or are free to distribute?

Funny how, depending on what's more convenient at the moment, they argue that they actually "license" the content (say, a song) to you, so you don't own a copy, you're just paying for the right to listen to the song, yet when you say "ok, then I'll just copy it to every player I have so I can listen to it on my car, my mp3 player, my home HiFi setup, my computer, etc" they go "no, wait! you actually bought one copy! on CD! if you want an mp3 you have to buy it again!"

"So basically the RIAA is trying to claim that if you legally own an MP3"

Stop there! You never own music, unless you made it yourself. You "rent" music by licensing certain rights to play it under certain circumstances. The whole shebang hinges on the argument that we as consumers, rent the music and so therefore a third-party should not be allowed to step in and copy the music as it wishes, as the RIAA have not explicitly granted these third-parties the right to copy that music. Apple is getting the praise

When I go to a store and buy a CD, I don't sign any lease (or any other kind of) contract. I BUY A COPY which I'm free to use as I see fit within the limits of copyright law (which in essence means: no public showings, no redistribution without permission).If they want to lease music under specific extra-copyright restrictions, they should clearly state so and not make everyone think they're buying something. Copyright doesn't give IP owners the right to impose conditions on usage other than those which are

I don't think Google and Amazon missed the boat here at all. I'd say that Apple missed the boat.

Google and Amazon's services allow streaming. Apple's doesn't. Apple's service is just a sync. A sync that avoids the upload and requires the download.

I can't access my music collection from my work computer without downloading it there. In fact my music collection becomes only available on iPhones/iPods and through iTunes. Amazon will end up being almost entirely platform neutral because they have no dog in the platform game. Google will likely try to support the IOS platform, assuming Apple lets them. I'll admit Google's support will probably lag behind the Android support and not be as good for IOS.

How much you wanna bet me that Apple never puts anything out for Android or any other mobile platform?

Apple's entire strategy here is to extend their lock in while fixing one of the annoyances of multi-device usage with iTunes. If they succeed we all lose.

Google will likely try to support the IOS platform, assuming Apple lets them. I'll admit Google's support will probably lag behind the Android support and not be as good for IOS.

Two things. #1 - Apple won't stop them. Apple/iTunes is huge in music, and even the music industry would back a fight against Apple for anti-competitive actions. Apple wouldn't have a legal leg to stand on, and it just make them look like wankers if they try. Google would route around them via the web anyways. And that was #2, the web. Google is going HTML5, and so long as they stick to standards Apple has a choice. Allow it, or be non-compliant with standards.

I do essentially the same thing from my own home server using a combination of Debian and Plex (for video). I'm a bit afraid that if they ever find out that I'm able to listen to my music and watch my movies from wherever I travel, I'll be knee-high in shite.

The RIAA and Co. have never sued anyone for using their own music digitally. They have sued when a third party is involved. The issue isn't that you are able to stream your music to you from your own system, or even from a web server somewhere else that you operate. The problem is that you are uploading your songs to Google or Amazon, which may very well be copyright infringement.

Or maybe it isn't. The problem is that Google and Amazon, like MP3.com before them, make an easy target. If it *is* infringement,

EXACTLY THIS. How is my home media server (I have two) any different from Amazon's cloud? Answer: There IS no difference. But they're sure trying to wring every single dollar out of this they can... I guess their planned obsolescence is coming sooner than they had hoped.

The internet lets people be their own record label... and that is pissing them off to NO end. Life's hard, buy a helmet.:)

EXACTLY THIS. How is my home media server (I have two) any different from Amazon's cloud? Answer: There IS no difference.

The difference is you are copying the file to yourself on your own home media server. Whereas with Google and Amazon, you are copying your file to them. Whether that difference counts legally has yet to be determined, but it's a fairly important difference.

No, you are copying it to a network drive that only you can access - no different than hosting your own server or copying it to an external hard drive (or even iPod for that matter). No one is able to make copies from another person's drive, which would be copyright infringement.

No, you are copying it to a network drive that only you can access - no different than hosting your own server or copying it to an external hard drive (or even iPod for that matter).

The difference is who owns the drive. If you are copying it to Google's hard drive, that's quite different from copying it to your own.

No one is able to make copies from another person's drive, which would be copyright infringement.

You will be making a copy onto Google's or Amazon's drive, then making another copy from it to your device or computer.

I'm not saying this difference will necessarily alter the legality of it, that can only happen in the courts or the legislature. What I am saying is that it's a key difference that opens Google and Amazon up to attack in a way that hosting your own server do

The difference is who owns the drive. If you are copying it to Google's hard drive, that's quite different from copying it to your own.

I haven't read their EULAs, but I suspect the way it's worded is that you're effectively renting that storage. I very much doubt that you can't copy an MP3 on a storage you own - I mean, if I rent a laptop, and load it with my MP3s, am I "distributing"?

All in all, the main reason I think they're good is because both Google and Amazon have went ahead without any license deals. That means that at least two independent lawyer teams - and, I would imagine, pretty expensive ones at that - have reviewed the law o

I haven't read their EULAs, but I suspect the way it's worded is that you're effectively renting that storage. I very much doubt that you can't copy an MP3 on a storage you own - I mean, if I rent a laptop, and load it with my MP3s, am I "distributing"?

Law supersedes contracts.

Otherwise, couldn't you just make a bittorrent EULA that says you are only "borrowing" space on other people's computers and that they have no right to use the copy themselves?

The EULA doesn't alter the fact that you are copying the file to a hard drive that is owned by Google or Amazon.

All in all, the main reason I think they're good is because both Google and Amazon have went ahead without any license deals. That means that at least two independent lawyer teams - and, I would imagine, pretty expensive ones at that - have reviewed the law on this matter.

That's not how the law works. Legal teams don't get to decide the law, judges, juries, and legislatures do. Every day, lawyers sign off on things that are later found to be illegal.

Otherwise, couldn't you just make a bittorrent EULA that says you are only "borrowing" space on other people's computers and that they have no right to use the copy themselves?

The EULA doesn't alter the fact that you are copying the file to a hard drive that is owned by Google or Amazon.

The concept of rental is well-established in the law. If I rent an apartment, whatever I store in it is my concern, and I bear sole responsibility over it, even though the apartment itself is owned by someone else.

That's not how the law works. Legal teams don't get to decide the law, judges, juries, and legislatures do. Every day, lawyers sign off on things that are later found to be illegal.

I know how the law works. Nonetheless, the point of legal review is to have reasonable assurance that your actions are not illegal. Quite obviously, legal teams at both Google and Amazon realized that RIAA et al will scrutinize the legality of the arrangement very thoroughly, and so surely they di

Otherwise, couldn't you just make a bittorrent EULA that says you are only "borrowing" space on other people's computers and that they have no right to use the copy themselves?

The EULA doesn't alter the fact that you are copying the file to a hard drive that is owned by Google or Amazon.

It sure does supersede. If you are renting an apartment with a bunch of CDs or DVDs included the landlord can be sued for illegally renting you CDs or DVDs without permission(unless the CDs or DVDs are intended for renting). However Google and Amazon are giving you the empty space and you get temporary ownership of that space with all privacy laws on your side. The house you rent an apartment in is owned by someone yet in that apartment all laws that apply in your own house still apply limited only by your

If you rent your apartment, should the MAFIAAs of this world get a cut because you are copying their content to someone else's property? As long as it's designated as "your space" then you are legally renting it and having temporary ownership. Just like with storage space in your GMail.

So why don't google / amazon just start breaking up the recording industry so they don't face these "challenges" by those trying to hold onto their old business models while continually getting rich off of others work?

Of course what they really fear is people sharing their music collection, with only one person listening to each licensed track at a time. With an average of around 4 minutes (gees, all this crap over four bloody minutes) per track, that means that 360 people per day could listen to that track, while the licensed owner of the track is not listening to it.

Personally all music largely dies and most people are just vainly listening to it trying to recapture lost memories. Better to let the old greed driven

"Personally all music largely dies and most people are just vainly listening to it trying to recapture lost memories. Better to let the old greed driven crap die and let new open, creative commons music take it's place."

I could not disagree more. There was great music made before I was born that is still great. There is music made now (though granted a small percentage) that will also stand the test of time. It's not all throwaway trash.

You also forgot that you will need a license if you:
-sing a song aloud
-play a CD in your car too loud
-play the radio too loud
-write down some lyrics to remember that song later
-in any other manner reproduce or recite a song

I tend to think of these things in rather simplistic, though hopefully realistic terms:

We are trying to come to terms with a very real paradigm shift.

In the past, life was easy. The written word was the written word. Broadcast TV was broadcast TV. A CD was a CD. You can replace each technology with what you wish (as long as it was available at the tie), but the equation was always the same.

Things these days aren't so simple though. Words can be in print or on the screen. When on the screen, they can b

I was watching a Discovery channel program about taboos of the native peoples around the world. At first,my knee jerk reaction was that it is a lot of hokum! Then I realized that the laws surrounding the sharing of music and video in the Western world is the new form of taboo. Completely arbitary restrictictions with potentially disproportionate repercussions. You know, kill a totem animal and end up as a frog in the next life, share a song and end up broke and imprisoned.

this is one of the few i love living in a third-world country. here, nobody fucking cares about music and video piracy. there are many much more important things and not enough time. i can download all the music, movies and games i want and i never have to worry about any repercussions. also, i can share music and movies freely with friends. like i'm listening to a great new song and i want my friend to check it out. i just tell him/her to switch on the bluetooth and click 'send via bluetooth'. the lack of

To be fair, the terms of use for Amazon's MP3 Store permit every one of those things when you buy your licence to listen to a particular album. You are explicitly allowed to make copies for personal, non-commercial use, including backups and copies for portable devices. See for yourself [amazon.co.uk]. You are simply not allowed to share, broadcast, rent or resell them, which is hardly unreasonable.

I know you're just joking, and yes, "whoosh", but things are not as bad as you make out.

The illegality of format shifting in the UK happened without the influence of the US music industry, or any other music industry. Copyright law states that you can not make a copy, except in some situations, without explicit permission. When the relevant law was passed, home recording was not considered and so there is no exemption for home format shifting. It's one of the things that's up for review at the moment.

And people can sing anything they want on their Birthday as long as it isn't to the tune written by the Hill's sisters in the late 1800's... you know, "Happy Birthday to You!... Happy birt... [ BANG! THUD! ]

{sound of body being drug out of reality into the cloud. }

----- You can't have a new technology if there is any possible way Big Content can kill you. it. I mean it.

I do not remember that storage media was required a license. Sony Corp. of America v. Universal City Studios, Inc. is the 1984 USA Supreme Court ruling which said once I bought a song I can record it in another media for my own use. Sony, BASF and Maxell made the cassettes used for the backups, and only Sony objected. But did Sony, like Apple (in the current article) feel it necessary to pay license fees when their own cassette tapes were being used to back up the media?

Every time these types of things rear their head, I can't help but think one thought.

The Music industry isn't very big.

Or at least, not particularly valuable. They are small potatoes. Tin gods that have been acting like 500 pound gorillas for so long that it doesn't get generally questioned. But they are tiny. Miniscule.

It's a slippery number to pin down, but what I see tossed around when the value of the recording industry comes up is yearly revenues in the range of 10 Billion, give or take a couple. Grand total, worldwide. Not just new music or record sales or some small slice, but the grand total yearly gross revenue.

The market cap of Apple alone is in the 300 Billion range. The iPad by itself will likely have a higher revenue this year than the entire music industry. And the other players in the market are people like Google and Amazon and Microsoft. The music industry is repeatedly going out of its way to poke a stick in the eye of a market that is at least one order of magnitude larger than them.

So far it hasn't be worth the trouble of swatting the mosquitoes. Any modern attempt to replicate what Sony did in the 80s and absorb a significant chunk of the music industry will be met with the mother of all corporate and government battles. It would open more anti-trust, market capture, licensing and trade issues, etc. than even their armies of bored lawyers want to contemplate. Even if every interested party in the technology world got together as a consortium to buy out the record companies and license everything on open and non-discriminatory terms it would kick off the legal battle of the century.

But at some point it will be worth it. Between Google and Amazon's services and the massive data center that Apple just built, the tech companies may have spent more in the last year to create these services than the record industry will collectively bring in. If the mice don't learn to fear the cats they will be eaten.

Isn't it sad that we need companies to fight our fights? No matter what side of companies will win, it won't be in the interest of the general public as long as they are not an involved party.

The way it should be (but never was) is that politicians are the representatives of the people and would be deciding what would be in the best interest of those people. Not if Amazon and Google are less evil then Sony and friends.

Ever see this site? [youtube.com] Yeah, it seems like Google bought a company that was facing massive copyright infringement suits, a few years back. It's also bringing more hit music videos to the public than MTV is, and guess what? Many of the musicians are small bands who aren't signed with the major record labels, yet. Google may not be particularly "funding the creation of music", but they are absolutely funding the mass distribution of independent music and music videos. They're also leaving the nasty recordin

The problem is that the "High IP Industry" is concentrated between a few players. There are only 4 major music publishers and Hollywood. Their CIOs can easily come together and spend a few million in campaign contribution and call themselves the "I.P. lobby". In addition, they know they are minuscule and they know they will get less and less important, so they are making everything in their possibility to get any help they can get. Also, they always claim to represent the authors, musicians and filmmakers o

I've watched that talk before, and while the message is interesting, she casually (and frequently) glosses over the fact that her industry is literally about putting the clothes on people's backs. It should be surprising to no one in the audience that people buy food and clothing more than CDs and DVDs.

If I recall correctly she even talks about how their industry requested and was/denied/ copyright on the ground that clothing/was too important a commodity/ to be regulated as such. It's not that they're

True, you make a lot of good points so I decided to look into it further. I decided to look into a high end brand of clothing (i.e. non-commodity) and the first company that popped into my head was Gucci.

The music industry is just one part of it. Pretty much all that work in the IP industry is looking at some form of "First they came for the music industry..." scenario. The RIAA. The MPAA. TV networks. The porn industry. The BSA. E-books. Put together there are a lot stronger forces at work to defend copyright, because they all realize it's not going to stop there. It would come to a showdown of who controls the creative output of all of them, they or the public. Sure, there's a little bit of infighting right now but don't pretend any of them has really changed sides, this is just corporate interests interfering.

Apple is hardly in the "anti-IP" camp. They have a ton of software patents on their products, they subscribe to the idea "we designed it, we OWN that idea". They're just opposed to anything that gets in the way of their profit margins. That's the way with most these companies, they're playing both sides of the fence. Google almost closed one helluva book deal where they'd use copyright to give themselves exclusive rights to the scans. Amazon makes good money on shipping CDs, DVDs, BluRays, computer games and so on - is it in their best interest to stir the pot here? And Microsoft is of course a heavy copyright defender.

So what are they going to say to the music industry? "You're being to obsessive-compulsive about control, ease up!" is the pot calling the kettle black - at least the music industry doesn't have mandatory online activation yet. Both the video and software industry is full of DRM that music doesn't have anymore. They just want to tug at this a little to make them back down, not unravel the whole rug. They certainly don't want the public to take any of this as any kind of endorsement or support for weakening corporate control, that's for sure. In the end I think that's why they reached an agreement, they have more to lose than to gain by bringing it to a showdown in court.

See, that's exactly the scenario that would (rightly) draw the biggest and most aggressive government response. Microsoft got spanked for doing something similar in the browser market, and that was arguably playing in their own backyard. A company intentionally attempting to drive an entire industry into bankruptcy in order to improve unrelated spin-off services? The sales wouldn't even go through before the regulators stepped in and then stepped all over it.

Microsoft did not get in trouble specifically for doing something similar. Microsoft recognized that there was money in selling development tools to web developers (which was where Netscape made the bulk of their profit). By giving away their browser to everyone who bought their OS, Microsoft was able to force web developers to support their browser. The easiest way for a web developer to do that was to use Microsoft's development tools. In addition, MS made their browser work in such a way that Netscape's

Though Apple is in negotiations with the 4 big labels, there will still be thousands of labels that haven't given them permission for users to upload and stream their songs. So Apple's being just as legally iffy as Google and Amazon. The difference is that Apple is cutting deals with the labels most likely to sue them so they won't.

there will still be thousands of labels that haven't given them permission for users to upload and stream their songs.

I don't need permission from a label to upload music I've paid for to a storage locker and to stream it or redownload it where ever I want. First label who says otherwise can suffer the death of a thousand cuts of not getting paid anymore for music.

MP3.COM had the "My.MP3.com" feature, which let users stream music from CDs that they had registered with the site. Universal Music Group sued them and cost mp3.com $53 million in judgements and legal fees.

If you RTFA (a shocking idea on/. but sometimes still worth it), it explains precisely how mp3.com was different.

Specifically: mp3.com used their copies of MP3s, after determining that the user presumably owns the same track by scanning a CD locally on that user's computer. In contrast, all three services in question require that you actually upload the MP3s that you own (leaving aside the store part of it, where you buy a track & it is immediately put into your cloud storage). Even if the files are bi

...all this iCloud, Amazon and Google music storage nonsense sounds a complete waste of time.

For years I've been buying CDs, ripping them to FLAC once then converting to MP3 as I need them. I store the MP3s on a portable hard disk and keep it with me for when I need it. It also works when there's no Internet connection.

Personally, I think far too many of you have far too much spare time on your hands to be worried about some nonsensical and convoluted web services that are trying to justify their own existe

I store the MP3s on a portable hard disk and keep it with me for when I need it. It also works when there's no Internet connection.

The iCloud is all about local storage, and replication of same. If you signed up for the Match part, you could take that whole HD, have it Matched, and then download to an iPhone/iPod Touch/iPad/Mac any of the songs on that HD over the internet. Then when you went traveling anything you had downloaded would be there...

How do you connect your portable hard drive to a music playing device that you could use while walking around? Sure, you could transfer pieces of your music library to your 16GB phone, but wouldn't it be convenient to just stream your music off 3G anywhere?

AAC is a proprietary (Apple-owned) file format just like MP3 - therefore every time you use it you can theoretically be asked to pay a license for it. And if that license is not granted for some reason, then you files are useless to you.

You seem to be very certain about 'facts' which turn out to be very wrong.

Spend a few minutes looking at the references on the article on AAC [wikipedia.org] and you'll see:

It was not developed by Apple

it is supported on tons of devices

no licenses are required to decode AAC encoded files

This is very easy information to find. Nothing wrong with you having opinions that are contrary to others, but when they are based on such blatantly false 'information', I have to wonder if there isn't something else guiding your opinions.

...all this CD music storage nonsense sounds a complete waste of time.

For years I've been buying vinyl, ripping them casettes as I need them. I store the casettes in a bag and keep it with me for when I need it.

Personally, I think far too many of you have far too much spare time on your hands to be worried about some nonsensical and convoluted digital solutions that are trying to justify their own existences. That's why you should learn to think like an engineer because you can discover simpler solutions for yourself.

I think there's two basic questions that need a solid answer from the courts (who up until now have declined to directly answer the question) or the legislature (who've been paid large sums of money to avoid answering the question):

If, having legally purchased a copy of a copyrighted work, I wish to store it and access it by several different methods, is this something I have a legal right to do as a consequence of owning that copy?

If the answer to #1 is "Yes.", do I have the right to contract out the man

Music can easily be stolen in a variety of very hard to trace methods. The more expensive and locked down the industry makes music the more likely even honest users are likely to steal it. So, here's a tip to the music industry: stop fucking around, welcome to the future, take what you can get.

It's "News for nerds." What's your definition of nerd? I'm a developer working with web technologies but I also hold a degree in law. This kind of stuff is incredibly interesting to me because it plays to my interest in the law as well as potentially having a direct impact in the applications I'm building/working with on a daily basis in my job. You're never going to find news that's interesting to every single person in a sufficiently large group, even when that group has broadly similar interests. You cou